In re Adoption of Jaelyn B.

1.
Judgments: Jurisdiction. A jurisdictional
issue that does not involve a factual dispute presents a
question of law.

2.
Statutes. The meaning and interpretation of
a statute present questions of law. 3. Judgments: Appeal and
Error. When reviewing questions of law, an appellate court
resolves the questions independently of the lower court's
conclusions.

4.
Jurisdiction: Appeal and Error. Before
deciding the merits of an appeal, an appellate court must
determine if it has jurisdiction.

5.
__:__. If the court from which a party appeals lacked
jurisdiction, then the appellate court acquires no
jurisdiction.

6.
__:__. An appellate court has the power to determine whether
it has jurisdiction over an appeal and to correct
jurisdictional issues even if it does not have jurisdiction
to reach the merits.

8.
Foreign Judgments: Jurisdiction: States. A
judgment rendered in a sister state court which had
jurisdiction is to be given full faith and credit and has the
same validity and effect in Nebraska as in the state
rendering judgment.

9.
Constitutional Law: States: Statutes: Public
Policy. Nebraska is not constitutionally required to
give effect to a sister state's statutes that are
contrary to the public policy of this state.

[293
Neb. 918] 10.Paternity: Child
Custody: Time. In Nebraska, a paternity
acknowledgment operates as a legal finding of paternity after
the rescission period has expired. And a father whose
paternity is established by a final, voluntary acknowledgment
has the same right to seek custody as the child's
biological mother, even if genetic testing shows he is not
the biological father.

11.
Paternity. Under Neb. Rev. Stat. §
43-1402 (Reissue 2008), establishment of paternity by
acknowledgment is the equivalent of establishment of
paternity by a judicial proceeding.

12.
Constitutional Law: Foreign Judgments:
States. The Full Faith and Credit Clause requires
states to give the same effect to a judgment in the forum
state that it has in the state where the court rendered the
judgment.

14.
Foreign Judgments: States: Paternity:
Adoption. Whether a paternity acknowledgment in a
sister state gives an acknowledged father the right to block
an adoption in Nebraska depends upon whether the
acknowledgment confers that right in the state where it was
made.

15.
Interventions. Under Neb. Rev. Stat. §
25-328 (Reissue 2008), to be entitled to intervene in an
action, an intervenor must have a direct and legal interest.
The intervenor must lose or gain by the direct operation and
legal effect of the judgment that may be rendered in the
action.

16.
Foreign Judgments: States: Paternity: Adoption:
Parental Rights. When the law of a sister state
legally determines that an acknowledged father has the full
rights of a natural father who can withhold consent to an
adoption, that father is not a "man" within the
meaning of Neb. Rev. Stat. § 43-104.22(11) (Reissue
2008).

17.
Judgments: Collateral Attack: Paternity. The
collateral attack rules that apply to a judgment also apply
to a voluntary acknowledgment of paternity that has the same
effect as a judgment.

18.
Constitutional Law: Appeal and Error. An
appellate court will generally not decide a constitutional
issue that was not presented to the trial court.

Appeals
from the County Court for Douglas County: Marcena M. Hendrix,
Judge.

George
T. Babcock, of Law Offices of Evelyn N. Babcock. and Jennifer
Gaughan, of Legal Aid of Nebraska, for appellant.

In
these consolidated cases, and a companion case,
[1] the
appellant, Jesse B., challenged the adoption of his daughter,
Jaelyn B. These consolidated appeals arise from the adoption
proceeding in county court. Jesse attempted to intervene to
challenge the court's authority to exercise jurisdiction
over the adoption proceeding. Jesse is Jaelyn's legal
father under Ohio statutes. Those statutes provide that he
has a right to notice of a proceeding to adopt Jaelyn and
that his consent is required. Jesse claimed that Nebraska
must give full faith and credit to Ohio's determination
of his paternity. He also claimed that the court lacked
subject matter jurisdiction because he had not consented to
Jaelyn's adoption.

Despite
Ohio statutes that give Jesse paternity rights, the county
court concluded that Nebraska's adoption statutes did not
require Jesse's consent to Jaelyn's adoption because
genetic testing showed that another man was Jaelyn's
biological father. Accordingly, the county court did not
allow Jesse to intervene. Later, it issued an adoption
decree.

We
conclude that Neb. Rev. Stat. 43-1406(1) (Reissue 2008)
requires Nebraska to give full faith and credit to Ohio's
paternity determination. Giving full faith and credit
includes giving effect to Ohio's determination that Jesse
must consent to Jaelyn's adoption. Because he did not
consent, we conclude that the county court erred in
disestablishing his paternity through an adoption decree. We
reverse the judgment and remand the cause with directions for
the county court to vacate its decree. We deal with the
custody issues [293 Neb. 920] going forward in Jesse's
separate habeas corpus appeal from the district court.

II.
BACKGROUND

Before
setting out the facts and resolving some of the issues under
Ohio's statutes, we set out the judicial notice
principles that apply here. A court may judicially notice
adjudicative facts, which are not subject to reasonable
dispute, at any stage of the proceeding.[2] In interwoven and
interdependent cases, we can examine our own records and take
judicial notice of the proceedings.[3]

Jaelyn
was born in Ohio in April 2013. The next day, the mother,
Heather K., and Jesse signed before a notary an
"Acknowledgment of Paternity Affidavit, " affirming
that Jesse was Jaelyn's father. The instructions provided
that both the mother and the father had to sign the
acknowledgment and have each signature notarized. The form
explained that the purpose of the paternity affidavit
"is to acknowledge the legal existence of a father and
child relationship through voluntary paternity
establishment." The signature certification required
each parent to affirm that he or she had read both sides of
the affidavit. On the back, the acknowledgment included a
notice of the parties' rights and responsibilities.
First, the man signing the form assumed the parental duty of
support. Second, the notice provided that Ohio statutes
limited the signatories' right to rescind it:

Both parents who sign this paternity affidavit waive any
right to bring a court action to establish paternity pursuant
to sections 3111.01 to 3111.18 of the Revised Code [293 Neb.
921] or make a request for an administrative determination of
a parent and child relationship pursuant to section 3111.38
of the Revised Code, other than a court action filed for
purposes of rescinding the paternity affidavit.

The
notice explained that in some circumstances, a signatory
could seek an administrative rescission of the acknowledgment
within 60 days. A signatory could also file a court action to
rescind it for fraud, duress, or mistake of fact. But a
signatory had to commence a court action after the 60-day
period for requesting an administrative rescission expired
and within 1 year after "the paternity affidavit becomes
final pursuant to sections 2151.232, 3111.25 or
3111.821" of Ohio's statutes. The form also provided
that if the law presumed another man to be the father, the
parties could not sign a paternity acknowledgment. The notice
defined a presumed father to include a man who had signed an
acknowledgment of paternity that was on file with the
"Ohio Department of Job & Family Services''
but was not yet final. Finally, the notice provided that
either parent had the right to request genetic testing at no
charge instead of signing the acknowledgment.

Heather
and Jesse were later named as Jaelyn's mother and father
on her birth certificate. It was recorded in Ohio's
office of vital statistics on June 3, 2013.

2.
Jesse's Relationship With Heather and Jaelyn

In the
Nebraska adoption proceeding, the county court received
Jesse's affidavit for deciding whether he could
intervene. In the affidavit, Jesse stated some background
facts regarding his relationship with Heather and Jaelyn.
Jesse met Heather in Omaha in June 2012, and they began
living together in July. That month, they learned that
Heather was pregnant. Jesse stated that he supported her
financially and emotionally throughout the pregnancy. In
March 2013, they moved to Ohio to live with Jesse's
parents. Jesse was present at Jaelyn's birth and took an
active role in caring for her.

[293
Neb. 922] According to Jesse, Heather left Jaelyn with Jesse
and his parents about the middle of September 2013 to pursue
a relationship with a man she met on the Internet. Before she
left, she signed the paperwork to give Jesse's mother
custody of Jaelyn. But at the end of September, Heather
returned and asked to take Jaelyn for a weekend visit. She
never returned Jaelyn. Jesse visited Jaelyn once in
Cleveland, Ohio, about 2 weeks later, but Heather would not
allow Jaelyn to return with him. Later, Jesse learned that
Heather had obtained a dismissal of an Ohio case to give
custody of Jaelyn to Jesse's mother. Instead, she
returned to Nebraska with Jaelyn. She refused to allow Jesse
to see Jaelyn, and at some point, she blocked his telephone
calls. The last time Jesse communicated with Heather was on
Christmas in 2013.

In
Jesse's motion to dismiss the adoption proceeding, he
attached a copy of a letter from Heather to a judge in the
Ohio Court of Common Pleas. In the letter, Heather requested
a dismissal of the custody petition for Jaelyn. She stated
that she had decided to retain custody of Jaelyn and return
to Nebraska. The letter was dated October 7, 2013. Another
attachment showed that the Ohio court dismissed the custody
case on the same day.

3.
Adoption Notification and Commencement of Judicial
Proceedings

In
January 2014, Jesse received adoption paperwork from
Heather's Nebraska attorney, Kelly Tollefsen. The letter
stated that Heather had identified Jesse as a possible
biological father and intended to relinquish Jaelyn for an
adoption. It informed him that if he intended to claim
paternity and seek custody, he should obtain his own
attorney, or he could sign the enclosed forms for
relinquishing Jaelyn and consenting to her adoption. In his
affidavit, Jesse stated that he had contacted Tollefsen but
that she would not provide him with any information about the
adoption. He could not afford an [293 Neb. 923] attorney and
did not obtain legal assistance in Nebraska until later that
spring.

In June
2014, Jesse filed a complaint in Lancaster County District
Court for a writ of habeas corpus and a declaratory judgment.
In that action, he challenged the constitutionality of
Nebraska's adoption statutes that permitted Jaelyn's
adoption without his consent. And he claimed that Nebraska
must give full faith and credit to Ohio's paternity
determination. On July 22, Jesse sued for custody in the Ohio
Court of Common Pleas. On July 30, Jesse filed an objection
to the adoption of Jaelyn and a request for notice of any
adoption proceeding for Jaelyn in Douglas County Court. In
August, Tylee H., the prospective adoptive parent, filed a
petition to adopt Jaelyn in Douglas County Court.

4. Ohio
Court Proceedings

A March
2015 order from the Ohio Court of Common Pleas shows that in
September 2014, Tylee moved to intervene in Jesse's
custody action (after she filed a Nebraska petition for
adoption in August). Tylee sought a dismissal of Jesse's
custody case, but the Ohio court continued the matter and
ordered a home study. In October, Tylee moved for a finding
that Jesse was not Jaelyn's biological father and asked
for a dismissal. The Ohio court again continued the matter
and ordered the parties to file briefs. In February 2015,
Tylee filed a notice of a final adoption in Nebraska. The
Douglas County Court entered the Nebraska adoption decree on
January 15, 2015.

The
Ohio court stated that Jesse's rights regarding an
adoption were established by the acknowledgment of paternity.
The court concluded that "[p]aternity is not an issue
because [Jesse] is the legal father of Jaelyn .... This court
is curious as to why this child was adopted in another
jurisdiction when this matter has been pending since July 22,
2014." It continued the matter for "pre-trial on
the issue of custody." At oral arguments before this
court, Jesse's attorney stated that the Ohio custody
proceeding was still pending.

[293
Neb. 924] 5. County Court Proceedings

(a)
Parties' Pleadings

In
Jesse's objection to the adoption, he alleged that under
Ohio law, his acknowledgment was a determination of his
paternity as though Jaelyn were born to him during marriage.
He believed that a person named "Tylee" or someone
else would seek Jaelyn's adoption and would claim that he
was a putative father. He objected to any adoption and
requested notice of any adoption petition or hearing. He also
alleged that he had filed a habeas proceeding in district
court to challenge Jaelyn's detention. He requested that
the county court hold any adoption petition in abeyance until
the district court resolved the claims in his habeas
proceeding.

As
stated, in August 2014, Tylee filed an adoption petition in
Douglas County Court. She alleged that Heather had
relinquished Jaelyn in February 2014 and that Jaelyn had
lived with Tylee for more than 6 months. Tylee alleged that
Jesse was not Jaelyn's biological father. She claimed
that she did not need his consent because he had not filed an
administrative request for notification of an adoption or an
administrative objection to an adoption. She acknowledged
that Jesse had filed a custody action in Ohio but claimed
that the Ohio court lacked jurisdiction for unstated reasons.
She requested that the court order Jesse to submit to genetic
testing.

In
September 2014, Jesse moved to intervene in the adoption
proceeding. He attached a copy of his paternity
acknowledgment. He alleged that the U.S. Constitution and
Nebraska's § 43-1406 required the county court to
give full faith and credit to his paternity determination
under Ohio law. Citing this court's decision in Cesar
C. v. Alicia L.,[4] he alleged that he was also Jaelyn's
legal parent under Nebraska law. Finally, he alleged that he
had a constitutionally protected relationship with Jaelyn
that required his consent to her adoption and that [293 Neb.
925] he had not given it. He cited the case number for his
pending custody case in Ohio and again informed the court of
the habeas corpus proceeding in district court.

Tylee
objected to Jesse's motion to intervene. She alleged that
Heather had named two possible biological fathers and that
genetic testing had shown that Jaelyn's biological father
was Tyler T., who had relinquished his parental rights. And
Nebraska's adoption statutes require consent only from a
biological father. She alleged that Jesse's paternity
acknowledgment created only a rebuttable presumption of
paternity and that genetic testing had rebutted the
presumption. Because Nebraska's statutes did not require
Jesse's consent, she claimed that he did not have
sufficient interest to intervene.

Jesse
responded with a motion to dismiss the adoption proceeding.
He alleged that the court lacked subject matter jurisdiction
and could not grant an adoption because he had not consented
to it. He alleged that he was a necessary party because of
his constitutionally protected relationship with Jaelyn.
Additionally, he alleged that under Ohio law, Heather had
waived her right to a judicial paternity determination
because she signed the paternity acknowledgment and did not
seek a rescission. He again alleged that the court must give
full faith and credit to Ohio's paternity determination.
He claimed that Tylee and her attorney had committed a fraud
on the court by characterizing him as a putative father.

(b)
Adoption Hearings

At the
hearing on Jesse's motion to intervene, the court
received Heather's February 2014 relinquishment of Jaelyn
specifically for adoption by Tylee. It also admitted evidence
that Jesse had filed an action in district court. He argued
that the district court therefore had jurisdiction over the
...

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